Justice William A. Neumann, Chair
Judge Ralph Erickson
Judge Donovan Foughty
Rep. Nancy Johnson
Rep. William Devlin
Justice Mary Muehlen Maring
Chair Neumann called the meeting to order at 10:00 a.m. and drew Committee members' attention to Attachment B (April 19, 2002) - minutes of the March 28, 2002, meeting.
It was moved by Judge Erickson, seconded by Sandi Tabor, and carried unanimously that the minutes be approved.
At the request of Chair Neumann, staff briefly reviewed Attachment C (April 19, 2002) - reorganization concepts based on the Committee's March 28 discussion. He noted also Attachment D (April 19, 2002), which is a more detailed reorganization proposal reviewed by the Court Services Administration Committee (CSA).
Chair Neumann observed that nothing in Attachment C is carved in stone and it is only a snapshot of the Committee's previous, general discussion about reorganizing the administrative structure of the judiciary. He invited further discussion of the subject in general and of the reorganization concepts in particular.
In response to a question from Sandi Tabor concerning what happened to the proposal reviewed by the Court Services Administration Committee, Justice Neumann said that after review and discussion, the Committee was hesitant about approving some of the more far-reaching proposed changes and generally reluctant to recommend the proposal to the Supreme Court. Ultimately, he said, the Committee decided to simply forward the proposal to the Chief Justice for informational purposes.
Sandi Tabor said the CSA proposal seems to have been a fairly reasonable plan and wondered whether this Committee should expend any more time or effort developing a different plan if the previous proposal was abandoned.
Judge Erickson agreed the proposal seemed to address many of the issues the Committee has discussed, but having been developed by a small working group, the proposal encountered a general, institutional resistance to change. The Supreme Court, he observed, seems reluctant to embrace what may be perceived as top-down management, a sentiment shared by the trial courts. He said there has been some opinion that if a body consisting of significant trial court judge membership was in place, then it may be possible for successful, bottom-up recommendations for change within the system.
Sandi Tabor observed that there has been, in the past, a sentiment that the judicial districts ought to be more involved in administrative decisions that affect the trial courts. She said the Chief Justice seems to have tried to accommodate that concern while not forsaking his constitutional authority and responsibility for administration of the judicial system. She said the "judicial council' approach in the CSA material seems to address the constitutional, administrative authority of the Chief Justice, while also providing a more democratic mechanism for participation by the trial courts in administrative decision-making. She said establishment of administrative regions, as envisioned in that proposal, also seems to address some of the issues discussed by this Committee.
Judge Erickson noted that the judicial council contemplated in the CSA material consists of approximately sixteen members, including the Chief Justice, the seven presiding judges, and three district judges elected at large. He said the objective apparently was to create a body that was broadly representative, but including seven presiding judges results in a fairly large group.
Justice Neumann observed that if current election districts were grouped into fewer administrative districts or regions, then the number of presiding judges would be reduced.
Judge Erickson observed that if there were three presiding judges, three or four district judges elected from the Judicial Conference, and a reduced number of lawyer members, then a group of about ten to twelve members would seem a workable size. Connie Sprynczynatyk noted that larger groups tend to coalesce around a core group that is most active.
Ryn Pitts suggested that if the group is expected to advocate for significant change within the system, then a more inclusive, larger group may be more successful.
Judge Foughty suggested including the officers of the Judicial Conference on the "administrative council", as described in Alternative 1 of Attachment C (Draft Reorganization Concepts).
Justice Neumann said including the Judicial Conference's Executive Committee on a "council" would have the likely advantage of lessening the need to find additional judges to participate. With the reduced number of judges in the state, he said, it is increasingly difficult to find judges with the time to take part in committee activities. An additional advantage, he said, may be that it would result in greater interest in participating in Judicial Conference activities generally, because the Conference's leadership body would be integrally involved in developing administrative policy.
Steve Andrist wondered whether, if what is being discussed would constitute significant changes in the judiciary, it might not be time also to consider realigning election districts. Judge Foughty said redistricting for election purposes may bring a host of new issues that would complicate discussion of administrative reorganization. Justice Neumann observed that there is a philosophical discussion about larger versus smaller election districts that somewhat mirrors the tension between judicial independence and accountability. Larger districts, he said, are viewed as fostering judicial independence, while smaller districts seem to support more accountability. Both, he said, are necessary but one should not overpower the other.
Becky Thiem wondered whether the presiding judges would perceive a loss of power and involvement if their number is reduced to three, to coincide with three administration regions, and they are included as just one part of the "council".
Judge Erickson observed that currently the presiding judges are only 7 of 42 judges and have authority to establish policy. He said the council concept in the CSA material contemplates the participation of 8 or 9 judges, rather than seven, in developing administrative policies. As long as everyone has equal opportunity to elect members to the council, he said, then it may be regarded as an improvement over the present Council of Presiding Judges.
Ryn Pitts noted that change is generally more readily accepted if someone perceives a personal advantage. With respect to the possibility of administrative reorganization, she wondered what individual judges would consider to be of personal advantage to them. Sandi Tabor responded that there would likely be a greater voice for more judges in the administration of the judicial system because judges would elect the officers of the Judicial Conference and the presiding judges, all of whom would serve on the "council".
Sandi Tabor wondered whether the concept of 3 administrative regions should be included in the Committee's proposal or whether the number of administrative regions should be identified as a future item to be considered by the council. Justice Neumann observed that there likely is a need to address the number of regions because that will affect the size of the council.
Judge Erickson recalled that at the November 2001 Judicial Conference there seemed to be an emerging consensus in support of reducing the number of administrative districts, and combining rural and urban districts so neither side has an institutional majority. Combining districts, he said, would require rural and urban locations to work toward common solutions.
Judge Foughty agreed there is a need to move toward three administrative regions. Retaining seven administrative districts with seven presiding judges, he said, would simply continue the desire to serve district interests.
Judge Erickson suggested an administrative council could consist of the Chief Justice, three presiding judges, the Executive Committee of the Judicial Conference, and perhaps two lawyers and the state court administrator. The result, he said, would be that the council would consist of four or five trial judges along with three presiding judges, thus giving the trial bench a majority on the council.
Steve Andrist said the ultimate objective of reorganization should be provide a more streamlined, more effective system that ensures judges have more time available for deciding cases. Justice Neumann observed that that reasoning might ring true for many judges, but others believe that judicial independence means having the authority to micro-manage administration of the system.
Connie Sprynczynatyk said it makes little sense to have a system in which taxpayers pay for judges and administrators but judges seems to minimize or restrict the function of administrative staff. Steve Andrist agreed. He said his primary interest as a taxpayer is that judges spend their time deciding cases, not administering the detailed operation of the system.
Ryn Pitts said she is not so convinced that affording judges more time to decide cases would be regarded as a substantial reason for change. She said given a choice between more time on the bench and the ego gratification that comes from controlling administrators, the latter may win out.
With respect to the CSA material, Sandi Tabor noted that an element missing from the proposal is any mention of the role of the state court administrator. She noted that the state court administrator currently seems to have been divested of any authority at the district court level. Judge Erickson agreed and said the current line of administrative authority collapses at the state court administrator level. He suggested that, with three administrative regions, professionally trained local administrators could be put in place and would be hired by the state court administrator, thus establishing a clear chain of command regarding the implementation of administrative policy. That, he said, would mitigate the effect of a single judge trying to coerce or intimidate local staff into acceding to that judge's wishes.
Judge Foughty observed that in his district different people, clerks, secretaries, etc., often handle the same thing, scheduling for example, at different times. He said a single administrator with sufficient authority likely could ensure more effective management and better use of personnel.
After discussion, Committee members agreed the question of the administrative line of authority should generally be addressed in the reorganization concepts.
With respect to Attachments C and D, Judge Erickson said he preferred Attachment C, with the additional detail concerning the "council" membership. Committee members agreed.
With respect to the status, responsibilities, and placement of committees, Committee members agreed Section IV in Attachment C generally addresses the issues.
In response to a question from Sandi Tabor concerning the role of the Judicial Conference, Committee members agreed the Conference can provide a useful method for discussing the work of the council and considering educational programs, and would also serve as the mechanism for electing some of the members to the council.
Connie Sprynczynatyk asked whether there were any funding issues associated with administrative reorganization. Judge Erickson responded that reorganization may have some additional costs in the short term resulting from retaining current administrative staff while bringing on new, but fewer, trained administrators. Over the long term, he said, streamlined, more consistent processes and procedures should lead to less wasted resources that result from conflicting and counterproductive demands and practices.
Justice Neumann wondered whether the state court administrator would need a deputy to deal with local, trained administrative personnel. He noted that the state court administrator is committed to many tasks not directly associated with the trial courts.
With respect to cost-benefits, Rep. Johnson said effective reorganization may result in more efficiently reallocating judicial resources so more, actual judicial services are available to the public. Justice Neumann agreed that is a possibility, particularly if administrators are allowed to do their work and less judge-time is dedicated to administrative detail.
With respect to improvements in service to the public, Judge Erickson noted that there are currently seven presiding judges who spend 10-15% of their time on administration. He said reducing the number of presiding judges to three, with three administrative regions, should assist in reducing that total time committed to administration. Additionally, he said, providing for professionally trained administrators could also further reduce the time presiding judges must spend on administrative matters, thus more judge-time for deciding cases should be available.
With respect to the administrative units identified in Attachment C, Steve Andrist wondered whether there was any particular significance in the geographic distribution. For example, he said including Divide and McIntosh counties in one unit seems to create a very large administrative area. Justice Neumann said the geographic arrangement does appear unbalanced, but the three units would apparently equalize the workload for three trial court administrators.
The Committee then turned to a continuation of the earlier discussion concerning how the judiciary is situated to respond to trends and influences and fulfil the vision and mission. Staff said the preceding discussion regarding administrative reorganization has addressed the first segment of the vision statement about providing an adequate support structure for the system. He said the remaining segments of the vision statement could be used to consider organizational needs to respond to the vision components.
At the request of Chair Neumann, Becky Thiem reviewed the work of the Joint Committee on Alternative Dispute Resolution, which she chairs. She noted that the Supreme Court had recently adopted Rule 8.8 of the Rules of Court, which provides for a kind of court-annexed or -sponsored alternative dispute resolution(ADR). In civil actions, she said, after an answer is filed the parties must indicate if they wish to participate in ADR and whether the ADR will be court-sponsored. Notwithstanding adoption of the rule, she said, there has been only piecemeal implementation of the rule's provisions among the judicial districts. She said the Joint Committee will meet in September to more thoroughly review and discuss the best way for the court system to undertake an ADR program. She noted that the insurance industry, as one example, is nearly requiring ADR or mediation in insurance-related disputes because of the perceived cost savings and because parties generally seem more satisfied with the outcome. She explained that she had participated in a recent court-sponsored ADR session in which a judge served as the mediator. She said the court facilities used for the session created an uncomfortable atmosphere and both the judge and the parties were generally uncomfortable with the process. There is a different dynamic, she said, when a judge, with whom a lawyer may have a future case, serves as the mediator, rather than a lawyer or private mediator. Nevertheless, she said, there is a general opinion among lawyers and clients that alternative dispute resolution should be an important part of the process, but the question is how far the courts should go in encouraging it or providing the services.
With respect to use of therapeutic justice programs identified in the dispute resolution segment of the vision statement, Justice Neumann observed that different kinds of "problem-solving courts" have arisen which envision a more proactive role for courts in dealing with underlying problems associated with cases. Currently, he said, there is one adult drug court and two juvenile drug courts in the state and all indications are that they have been generally successful.
In response to a question from Ryn Pitts concerning the origins of drug courts, Judge Erickson said the trend began in 1992 with a California model court. The Department of Justice, he said, was impressed with the success of the court and federal grants were then made available to establish more drug courts. North Dakota, he said, received such a grant and the juvenile drug courts were put in place. The important issue now, he said, is whether there is a way of including the drug courts explicitly within the juvenile court structure.
Justice Neumann observed that there is increasing interest around the country in specialized mental health courts as an additional kind of problem-solving court.
With respect to organizational needs to respond to the possibility of more specialty courts, Becky Thiem said a restructured administrative system, with clear lines of authority, should provide a central mechanism for analyzing the costs and resource implications for such programs.
With respect to line 15 of the vision statement [Attachment E (April 19, 2002)] regarding pursuing the increased use of therapeutic justice programs, Justice Neumann said the language seems to commit the judicial system to implementing a wide variety of programs. He said it will be important to have in place a method for analyzing the suitability of particular programs and measuring their impact upon the system. He suggested the language be modified to reflect the need to assess the feasibility of therapeutic justice programs rather than offer what appears to be a blanket commitment to all problem-solving courts.
Becky Thiem said including language concerning evaluation would be acceptable, but the statement should, in keeping with the future-oriented nature of vision statements, emphasize the positive use of alternative courts when appropriate.
After further discussion, Committee members agreed that line 15 of the vision statement should be revised to provide that "[t]he judicial system will pursue the appropriate use of therapeutic justice programs ... ."
With respect to organizational strengths and weaknesses concerning public trust and knowledge, Justice Neumann noted that a person on contract with the Supreme Court is currently developing a speakers bureau and developing information about the courts to be used by judges and court personnel when speaking to various groups. Judge Erickson noted that judges generally speak fairly often at schools and before civic organizations.
With respect to planning and structure, Becky Thiem wondered whether responsibility for this public education effort would be placed with the new "council", the Supreme Court, the Office of State Court Administrator, or somewhere else. She suggested there should be some central responsibility for public education efforts to ensure that the subject is not handled sporadically or in a piecemeal fashion.
With respect to the public's perception of professions, Ryn Pitts noted that the public often wants to know if doctors are peer-reviewed and how impaired physicians are handled. She wondered how the judiciary responds to similar questions.
Justice Neumann noted that the Supreme Court's Judiciary Standards Committee is currently considering a proposal regarding judicial improvement which would provide a survey process by which judges receive comments from staff and lawyers concerning their conduct and performance.
Rep. Johnson said it is important that the public receive information about judges for election purposes. Too often, she said, there is very little information available about judges seeking reelection.
Justice Neumann explained that the improvement program under consideration would not provide information to the public. He said if the improvement program were turned to providing information to the public, then the goal of improving the performance and conduct of judges would likely be compromised. Additionally, he said, there likely would be little support among judges for the improvement program if information gained through the process were to be made available to the public. Judge Erickson noted that the fear among judges is that an unfair criticism offered during an evaluation process will be aggressively used during an election and the judge will be unable to respond because of limitations placed on the judge by the Code of Judicial Conduct.
In response to a question from Chair Neumann concerning the contents of an initial plan to be presented at the June Judicial Conference, Judge Erickson suggested the plan outline should be limited to administrative restructuring and reorganization of the court system. If, he said, a consensus regarding reorganization can be reached at the Judicial Conference, then there will be time to work later on the remaining items.
Justice Neumann said it is important to have the outline of a plan to submit to the Supreme Court by July or August in the event there are changes that may need to be addressed in the budget for the next biennium. He said the plan submitted to the Supreme Court should address everything in the vision statement, but he agreed that all aspects of the vision statement need not be the focus of the Judicial Conference sessions.
After further discussion, Committee members agreed the Judicial Conference planning sessions should focus on administrative reorganization and the remainder of the plan could be completed at subsequent Committee meetings in light of Judicial Conference results and further Committee discussion..
Chair Neumann said he would like to form a subcommittee to coordinate Judicial Conference activities with the Group Decision Center, which will be facilitating the discussion. He said Justice Maring has agreed to chair the subcommittee. In response a question from Chair Neumann Sandi Tabor, Judge Erickson, and Rep. Johnson said they would be willing to serve on the subcommittee.
In response to a question from Steve Andrist, Chair Neumann said information concerning the planning discussion would be assembled and distributed to members of the Judicial Conference in advance so there will be time for review.
There being no further business, the meeting was adjourned at 2:45 p.m.
Jim Ganje, Staff